News From Crystal Palace has been looking at some of the issues and rulings relating to the Freedom of Information Act.
The following extracts are from a House of Commons briefing paper titled ‘Freedom of information requests’ published Wednesday, November 14, 2018 which gives an overview of freedom of information requests.
Here are some extracts from the briefing paper:
A public authority can only withhold the information if the public interest in maintaining the exemption outweighs the public interest in disclosure.
In carrying out the public interest test the authority should consider the circumstances at the time at which it deals with the request. If carrying out an internal review, it may consider the circumstances up to the point that review is completed.
Public interest arguments for the exemption must relate specifically to that exemption. For example, where the exemption is about prejudice to a particular interest there is an inherent public interest in avoiding that prejudice.
If there is a plausible suspicion of wrongdoing on the part of the public authority, this may create a public interest in disclosure. And even where this is not the case, there is a public interest in releasing information to provide a full picture.
Arguments based on the requester’s identity or motives are generally irrelevant.
Public interest arguments
20. In carrying out the public interest test, the authority should consider the arguments in favour of disclosing the information and those in favour of maintaining the exemption. The authority should try to do this objectively, recognising that there are always arguments to be made on both sides.
It may be helpful for the authority to draw up a list showing the arguments it is considering on both sides; this will help when it
comes to assessing the relative weight of the arguments.
21. FOIA provides a right of access to information public authorities hold and the exemptions from that right listed in Part II of the Act aim to protect particular, specified interests. So, the public interest arguments in favour of maintaining an exemption must relate specifically to that exemption.
In Christopher Martin Hogan and Oxford City Council v Information Commissioner EA/2005/0026 and 0030, 17 October 2006 (‘Hogan’), the Information Tribunal said at paragraph 59: “In considering factors that mitigate against disclosure, the focus should be upon the public interests expressed explicitly or implicitly in the particular exemption provision at issue.”
– Presenting a ‘full picture’
38. Even if wrongdoing is not an issue, there is a public interest in fully understanding the reasons for public authorities’ decisions, to remove any suspicion of manipulating the facts, or ‘spin’. For example, this may well be a public interest argument for disclosing advice given to decision makers. The fact that the advice and the reasons for the decision may be complex does not lessen the public interest in disclosing it and may strengthen it.
Similarly, the information does not have to give a consistent or coherent picture for disclosure to help public understanding; there is always an argument for presenting the full picture and allowing people to reach their own view. There is also a public interest in the public knowing that an important…
…..decision has been based on limited information, if that is the case.
42. The requester’s identity or their motives in seeking the information are not relevant to the public interest test. FOIA is often said to be ‘applicant and motive blind’. This is because a disclosure under FOIA is in effect a disclosure to the world. The public interest issues that come into play when a qualified exemption is engaged are about the effect of making the
information public, not the effect of giving it to a particular requester. This does not mean that the requester’s public
interest arguments should not be considered.
PAGE TWENTY FOUR
– The specific information and the public interest in disclosure
64. In assessing the weight of arguments for disclosure, it is important to consider how far disclosing the requested information would further the public interests identified. The information may be relevant to a subject of public interest, but it may not greatly add to public understanding – in such cases the public interest in maintaining the exemption may outweigh that in disclosure.
On the other hand disclosure may help inform that debate, and if so the public interest in disclosure is strengthened. The weight of the argument for disclosure will depend on the content of the information and the nature of the
public interest identified.
The balancing exercise
67. Public authorities must then carry out a balancing exercise to decide whether the public interest in maintaining the exemption outweighs the public interest in disclosure. If it does not, the information must be released.
76. This guidance has been developed drawing on ICO experience.
Because of this it may provide more detail on issues that are often referred to the Information Commissioner than on those
we rarely see. The guidance will be reviewed and considered from time to time in line with new decisions of the Information
Commissioner, Tribunals and courts.
(And there’s nothing in there about the number of FOI requests an individual or organisation can make….-Ed.)
Further reading: LAMBETH COUNCIL REFUSE TO ANSWER FOI QUESTIONS MADE BY NEWS FROM CRYSTAL PALACE November 26th 2018
MOCK THE WEEK: FREEDOM OF INFORMATION LAMBETH-STYLE February 24th 2017
(and lots, lots more – please search ‘Freedom of Information’ – Ed.)